INTRODUCTION TO Dr. Che Khairil Izam Che Ibrahim Ir. Dr. Syuhaida Ismail Tort-Introduction

! Wrongful acts/omissions ! Civil wrong independent of ! Liability arising from a breach of legal duty owed to person generally ! Breach of duty primarily fixed by law ! Its breach is redressed (compensated) by an action for unliquidated - damages in a breach of contract case that is not predetermined by the party e.g. damages for pain and suffering ! Elements of fault and damages must exist

Function

! Redress of wrongs or injuries by means of civil actions ! Redress may take in form of damages (monetary) ! To share the burden of victim’s loss ! Compensation to teach wrongdoer to be careful and responsible in future Aims of Law of

! Compensation - to compensate the victim of the wrong to the extent of the damage suffered ! Deterrence / prevention - to ensure that it does not happen again or, even, better, to prevent it from occurring at all Tort-Features

! Must be a wrongful act ! The wrongful act affects the right of interest of others ! The victims or injured party has right to claim for damages ! An act without damages is not a torts Tort-Elements

! Tortfeasor, or defendant, had a duty to act or behave in a certain way. ! Plaintiff must prove that the behavior demonstrated by the tortfeasor did not conform to the duty owed to the plaintiff. ! The plaintiff suffered an injury or loss as a result. Important Concepts

! Tortious liability ! Something not allowed or leaved something required by law ! Intention (a state of mind) in 2 ways: ! Knows the consequences, foreseeable to give rise to some infringement (violation) to the victims and tested by the objective test ! Presume to have probable consequences ! Motives/Malice ! Evil motive

Important Concepts (Cont.)

! Damage ! Proof is required before defendant (tortfeasor) is held liable ! Forms:

a) Physical Injuries

b) Damage to property

c) Damage to reputation

d) Economic Loss ! Types:

a) Unliquidated - Unquantifiable e.g. pain

b) Liquidated – Specific damage (loss earning) Legal case

Question ! Batty v. Metropolitan Realisations Ltd [1978]. A developer sold a house which is unsuitable for habitation to the plaintiff as it was built at the top of a potentially unstable slope. Who was held liable? Legal Case (Cont)

! The developer i.e Metropolitan Realisations was liable because: a) The developer did something not allowed by law b) There was an intention of presuming that the construction would have probable consequences c) Proof of damage d) Effect the rights of buyer Scope of Tort

Scope of Torts

Defamation/ Slander

Person Goods Land

Assault Detinue

Battery

False Imprisonment TRESPASS TO PERSON Scope of Tort

Scope of Torts

Defamation/ Trespass Negligence Nuisance Strict Liability Slander

Person Goods Land

Assault Detinue

Battery Conversion

False Imprisonment Categories of Trespass to Person

Trespass to Person

Battery False Assault - Intentional and Imprisonment - Direct act direct application - Restrict a person causing fear of force movement Scope of Tort

Scope of Torts

Defamation/ Trespass Negligence Nuisance Strict Liability Slander

Person Goods Land

Assault Detinue

Battery Conversion

False Imprisonment TRESPASS TO PERSON

1. Assault ! Direct act that causes apprehension/fear ! Concerns with protection of a person’s mental ! Elements of assault are: - Mental state of the defendant - The effect on plaintiff - Capability to carry out the threat - Words ! e.g. Roosevelt v. St George [1960]. Defendant pointed an unloaded gun at plaintiff

Scope of Tort

Scope of Torts

Defamation/ Trespass Negligence Nuisance Strict Liability Slander

Person Goods Land

Assault Detinue

Battery Conversion

False Imprisonment TRESSPASS TO PERSON (Cont.)

2. Battery ! Intentional and direct application of force ! Elements of battery are: ! The mental state of the defendant ! The defendant’s act was under his control

! Contact ! Without plaintiff’s /permission

TRESPASS TO PERSON (cont.) E.g. Scott vs Shepherd (1773). A lighted squib was thrown by defendant into an open area. A picked it up and threw it upon B, who then picked it up and threw it away. Squib hit plaintiff and burst into flame. Defendant liable even though his initial gesture did not directly affect plaintiff as his act is under his control. TRESSPASS TO PERSON (Cont.)

! Differences between assault and battery

ASSAULT BATTERY

Issue of consent/ Defendant’ s act is permission does not done without arise plaintiff’s consent Plaintiff experiences Physical contact reasonable between defendant apprehension/ and plaintiff fearfulness of a force upon his person Scope of Tort

Scope of Torts

Defamation/ Trespass Negligence Nuisance Strict Liability Slander

Person Goods Land

Assault Detinue

Battery Conversion

False Imprisonment TRESPASS TO PERSON (Cont.) 3. False imprisonment ! Restriction of a person’s movement ! Intention is prerequisite ! The restraint must be a direct consequences of the defendant’s act ! The restraint must be complete

TRESPASS TO PERSON (cont.)

! Harnett v Bond and Anor. (1924). Plaintiff lived in an asylum run by D2. Plaintiff was given a 1 month’s leave but D2 was given discretion to call plaintiff back if D2 felt that plaintiff could not look after himself. On his 2nd day out, plaintiff went to visit a friend at an office. D1 who was there was of the opinion that the plaintiff acted strongly. D1 called D2 to ensure that plaintiff stayed at the asylum as D2 would send a car to fetch plaintiff. The car arrived 3 hours later and plaintiff was brought back to asylum. D2 found plaintiff insane and did not let him out. For 9 years thereafter, plaintiff was sent from 1 institution to another. ! Finally, plaintiff was proven sane. Thus, D1 was liable for imprisonment during 3 hours restraint, and D2 for 9 years restraint.

TRESPASSS TO GOODS Scope of Tort

Scope of Torts

Defamation/ Trespass Negligence Nuisance Strict Liability Slander

Person Goods Land

Assault Detinue

Battery Conversion

False Imprisonment TRESPASS TO GOODS (cont.)

! Wrongful and direct interferences with goods that are in possession of another ! Elements: ! Mental state of defendant – Has intention ! Interference ! Causes immediate contact with plaintiff's property ! Must be voluntary ! Who can claim ! Person who has possession ! Do not have possession but may claim as trustee i.e. on behalf of beneficiary, an executor or administrator and a person with a franchise Scope of Tort

Scope of Torts

Defamation/ Trespass Negligence Nuisance Strict Liability Slander

Person Goods Land

Assault Detinue

Battery Conversion

False Imprisonment TRESPASS TO GOODS (cont.)

! Detinue – Illegal possession of goods due to withdrawal by the owner ! Goh Hock Guan & Associates v. Kanzen Bhd. Defendant i.e. the plaintiff’s firm claim for the wrongful retention of the passport for one of its representatives by defendant. No one had right to claim for the wrongful detention on behalf of the owner, except the owner himself. TRESPASS TO GOODS (cont.)

! Abdul Mutallib b. Hassan v. Maimoon bte Haji Abdul Wahid. Plaintiff operated a coffee-house which is rented from defendant. Defendant locked the premises and plaintiff claimed for trespass and for return of his possession remained in the shop which were being withheld by defendant. Defendant was liable as plaintiff had possession over premises. Scope of Tort

Scope of Torts

Defamation/ Trespass Negligence Nuisance Strict Liability Slander

Person Goods Land

Assault Detinue

Battery Conversion

False Imprisonment TRESPASS TO GOODS (Cont.) Classified into: ! Conversion ! Dealing with goods in manner inconsistent with the right of true owner ! e.g. Ashby v Tolhurst. Plaintiff left his car at defendant’s car park. When he came to collect, attendant told plaintiff someone who claimed to be plaintiff’s friend had driven the car out. Defendant was not liable as there was a disclaimer of liability at parking lot

TRESPASS TO GOODS (cont.)

! E.g. Hollins v Fowler (1874). Plaintiff was an agent who owned bundles of cotton. T tricked plaintiff and obtained possession of some bundles. Defendant, a cotton broker bought some from T and sold it to the 3rd party. Defendant was liable for conversion because although he did not trick the plaintiff to obtain the cotton, he was on the possession of the fraudulent cotton, that is conversion. TRESPASS TO GOODS (cont.)

CONVERSION DETINUE Intentional dealing Negligence is sufficient One wrongful act arises Continuous tort. Arises when defendant refuses to return goods until such time when goods are returned or when judgment is given Plaintiff must have either Plaintiff must have right to right to immediate possession immediate possession or actual possession

Involves denial of defendant’s Must be a wrongful detention right over the good i.e. Must have a demand and refusal TRESPASS TO GOODS (cont.)

Conversion Detinue

Amount of damages is value of Amount of damages is value of good at conversion occurs good at judgment date and damages between refusal date and return/payment date of the value of the goods Scope of Tort

Scope of Torts

Defamation/ Trespass Negligence Nuisance Strict Liability Slander

Person Goods Land

Assault Detinue

Battery Conversion

False Imprisonment TRESPASS TO LAND ! Elements of trespass to land are: ! Intention ! Acts of entry done voluntary ! Interference is foreseeable as due to defendant’s act ! Interference must be direct TRESPASS TO LAND (cont.)

! What is interference? ! Enter land which is the plaintiff’s possession - Wrongly entered ! Remain on the plaintiff’s land - Continuing the trespass (failure to remove) ! Enter or place an object on the plaintiff’s land ! Interference to airspace

TRESPASS TO LAND

! Who may claim? ! Possession in fact and just tertii (third party rights) – A defense where the third party who has better possession than the plaintiff, has better right to use and to exclude others ! Possession in accordance to law ! The right to continue possession ! Co-owners ! Possession under a TOL (Temporary Occupation License)

TRESPASS TO LAND

! e.g. Basely v. Clarkson (1681). Defendant accidentally mowed plaintiff’s grass whilst he was mowing his own. Defendant was liable as the act of moving was a voluntary act and done with intention

TRESPASS TO LAND

! e.g. League Against Cruel Sports Ltd V. Scott. Plaintiff owned a deer sanctuary. Hunting was prohibited on the ground. Hounds from local hunt (led by defendant) entered sanctuary and disturbed the deer. Defendant was not liable as the trespass was accidental and involuntary act on his part. However, if defendant had intended the hounds to enter plaintiff’s land and he knew there was probability of the hound to enter and yet he did not take precaution steps to prevent the foreseeable entry, he would be liable

TRESPASS TO LAND

! Kelsen v Imperial Tobacco Co [1957]. Defendant committed trespass by allowing an advertising board to project eight inches into the plaintiff’s property at ground level and another above ground level

Group Exercise

! Within 20 minutes, discuss Stare Decisis of trespass cases related to construction industry. Your groups are randomly given the following scope of trespass. You are to present the case via role play in maximum 5 minutes.

Scope of Torts

Defamation/ Trespass Negligence Nuisance Strict Liability Slander

Person Goods Land

Assault Detinue

Battery Conversion

False Imprisonment